Tuesday, April 5, 2011

Abbott Labs Wins Motion to Dismiss

Where have we gone so wrong, America? Our pioneer forefathers are rolling in their graves. Whereas they endured disease, famine, and early death, we spit in their faces, enjoying our iPhones, antibiotics, and frivolous lawsuits. Some measure of order was restored in O’Neil v. Abbott Laboratories, Inc., No. 11-11, 2011 WL 902427 (E.D. La. March 11, 2011), when the court dismissed a complaint alleging infant injury from beetle parts allegedly present in Similac, which you may remember from here. Put simply, there may have been some ground up warehouse beetle in 0.2% in a particular lot of infant formula. No big deal. Even the FDA says that there is no immediate health risk just a chance of GI irritation.

Plaintiffs presented a putative class action based on the fact that their child suffered diarrhea and diaper rash due to consumption of Similac. Do you know what a pioneer would call a day in which he had to face only diarrhea and diaper rash? An outstanding day. If I told my mother that I found a bug in my food, do you know what she would call it? Protein. Oh, America, we have become a nation of wimps.

The court saw this putative class action for what it was, and used Iqbal to dismiss the action. Noting that infants often suffer diarrhea and diaper rash for “non-entomological reasons,” the court subtly chastised the plaintiffs for bringing a negligence-styled products liability action, when negligence is not available in the Louisiana Products Liability Act against manufacturers. Nevertheless, the court afforded the plaintiffs a chance to amend, and even spelled out the four elements that a plaintiff’s complaint must satisfy on its face.

Sure, it may be discomforting to imagine a baby consuming a little warehouse beetle. But babies lick the floor and eat other disgusting things. I’m sure that these concerned parents who think that their kid may have eaten a little bug would not self-report if they found their child chewing on a shoelace that may have touched a public restroom floor or other germ-infested surface. Unfortunately, this case will be refiled in a style that survives the motion to dismiss, and you and I will get the class action settlement notice by mail or email a year from now. Millions of dollars wasted to litigate some GI problems. Oh, America, what have we become?
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